Law Review: Banning Distribution of Literature

Kozlowski, James C., Parks & Recreation

Town and city ordinances should have clear and specific language when regula ting free speech activities.

In the absence of "narrow objective and definite standards to guide the licensing authority," laws and ordinances which impose a prior restraint on First Amendment freedoms are unconstitutional. The right to distribute leaflets, tracts and handbills is a constitutionally protected form of speech. As a result, an ordinance that requires an individual obtain a special permit before distributing literature in a public park must further a compelling governmental interest, unrelated to speech.

Although subject to reasonable time, place and manner restrictions, ordinances regulating free speech activities must be "drawn with narrow specificity and are no more restrictive than necessary to serve those [compelling governmental] interests."

In the case of People v. Mendelson, 2007 NY Slip Op 27137, defendant Susan Mendelson was charged with a violation of §168-16 of the Code of the town of Oyster Bay, N.Y., for "distributing leaflets on behalf of 'Jews for Jesus' without a permit" in John Burns Park.

At the time, Sectionl68-16 of the Code of the Town of Oyster Bay entitled "Public addresses, entertainments or parades" provided as follows:

No person shall erect any structures, stand or platform; hold any meeting; perform any ceremony; make a speech, address or harangue; exhibit or distribute any sign, placard, notice, declaration or appeal of any kind or description; exhibit any dramatic performance or the performance in whole or in part of any interlude, tragedy, comedy, opera, ballet, play, farce, minstrelsy, dancing, entertainment, motion picture, public fair, circus, juggling, ropewalking or any other acrobatics or show of any kind or nature; or run or race any horse or other animal, or, being in or on a vehicle, race with another vehicle or horse, whether such race is founded on any stake, bet or otherwise, in any park or beach except by special permission of the Town Board.

Facts of the Case

On July 25, 2006, Mendelson went to John J. Burns Park in the Town of Oyster Bay, with two other volunteers for Jews for Jesus, intending to distribute free religious literature and/or to speak with people about their religious beliefs. They were met by the town's commissioner for public safety who told them they could not engage in either of these activities. The police arrived at the request of town officials and escorted the defendant and her colleagues out of the park.

When Mendelson called the town's offices on July 27, 2006, to obtain a permit to distribute free religious literature in the town's parks, she was told by the deputy commissioner of parks that "there was no permit process in place for the distribution of religious tracts and speaking to the public at town parks."

In addition to parade permits, the town had issued permits to use town facilities and parks for a wide variety of sectarian and non-sectarian activities including "caster egg hunts, charity car washes and a 'Community Santa Detail' as well as a permit granted to the Midway Jewish Center to hold a religious ceremony."

Mendelson's attorney contacted Nassau County police officials and the town attorney to determine "the process for obtaining a permit to distribute literature within the Town of Oyster Bay." According to the deputy police chief, no one had ever been given a permit to do so. Moreover, the town's deputy commissioner of parks testified that he had advised Mendelson that "there was no permit she could acquire that would authorize her to distribute free religious literature at town parks."

In addition, the Town's police chief told Mendelson's attorney that "Jews for Jesus was allowed to enter the public parks to speak with people, but the police would arrest any Jews for Jesus personnel if anyone was offended by the discussion" and "the park officials would be authorized to issue a trespass citation. …

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